DASS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Case [2025] ARTA 1898

DASS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 1898 (10 September 2025)

Applicant:Rajnesh Rohit DASS

Respondent:  Minister for Immigration, Citizenship and Multicultural Affairs

Tribunal Number:                2024/2284

Tribunal:Senior Member Hon J Rau SC

Place:Adelaide

Date:10 September 2025

Decision:The Tribunal affirms the decision under review.

....................[sgnd]..............................

Senior Member Hon J Rau SC

CATCHWORDS

MIGRATION – mandatory cancellation of Class BB Subclass 155 Five Year Resident Return visa under section 501(3A)- where Applicant does not pass the character test– Applicant has substantial criminal record – family violence – break and enter – common assault – driving offences – two previous visa cancellations - whether the visa cancelation under section 501CA(4) should be revoked – consideration of Ministerial Direction No. 110 - decision under review is affirmed.

LEGISLATION

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

FYBR v Minister for Home Affairs [2019] FCA 500.

FYBR v Minister for Home Affairs [2019] FCAFC 185

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIAL

Minister for Immigration, Citizenship, and Multicultural Affairs (Cth), Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024).

REASONS FOR DECISION

Senior Member Hon J Rau SC

10 September 2025

INTRODUCTION

  1. The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) on 8 April 2024,[1] not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa (“the Visa”). His visa was cancelled on 4 April 2023 under section 501(3A) on the basis that he did not pass the character test.[2]

    [1] Hearing Book (‘HB’) 15-30.

    [2] HB 15.

  2. Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of his conviction for various offences as set out below and his sentence to 16 month’s imprisonment on 17 February 2023.[3]

    [3] HB 19, 39.

  3. The Applicant concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.

  4. The hearing was held on 18 and 19 of August 2025. The Applicant was represented by Ms Marial Lewis of Crossover Law Group and the Respondent was represented by Mr Matthew Wong of HWL Ebsworth Lawyers.

  5. The Applicant gave evidence by video from Villawood Detention Centre. He tended to be argumentative, or given to rambling, often…

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Details
AGLC
DASS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 1898
Case
[2025] ARTA 1898
Decision Date

CaseChat Overview and Summary

The Applicant, a Fijian national, sought review of a decision to refuse to revoke the mandatory cancellation of his visa under section 501(3A) of the Migration Act 1958 (Cth). The Applicant had a substantial criminal record, including family violence, break and enter, common assault, and driving offences. He had previously had two visas cancelled. The Tribunal was required to consider Ministerial Direction No. 110 in determining whether the visa cancellation should be revoked. The primary issues were whether the Applicant's criminal history and character demonstrated that he did not pass the character test, and whether revocation of the visa cancellation was in the best interests of his minor children.

The Tribunal found that the Applicant did not pass the character test due to his extensive criminal history and failure to address his criminogenic needs. Despite his extensive family connections in Australia, the Tribunal found that the Applicant had been a long-term burden on the community. The Tribunal found that the best interests of the Applicant's minor children would be served by upholding the visa cancellation, as the children would be deprived of their father's financial and practical support if he were to return to Fiji. The Tribunal also found that the Applicant's wife and other close family members would suffer serious consequences if he were to be deported.

The Tribunal affirmed the decision under review, refusing to revoke the mandatory cancellation of the Applicant's visa. The Tribunal found that the Applicant's criminal history and character demonstrated that he did not pass the character test, and that revocation of the visa cancellation would not be in the best interests of his minor children.

Orders

Orders of the court

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Background

Background to the litigation

At the Tribunal’s request, the parties jointly prepared a calendar setting out the Applicant’s complex history of AVO’s, conditional releases, imprisonment and time spent in immigration detention. This document is a diagrammatic representation of the long and complex narrative set out below. It is intended to assist in understanding that primary evidence, in a chronological context. This document is annexed to this decision and marked “Annexure A”.Background Facts The Applicant was born in Fiji on 22 May 1977. He is now 48 years old. He is a Fijian national.[8] [8] HB 78, 103. On 28 June 2002, when the Applicant was aged 25, he came to Australia.[9][9] HB 148. Between 2002 and 2015, the Applicant worked as a shop assistant.[10][10] HB 95. On 18 August 2003, the Applicant departed Australia for Fiji.[11][11] HB 148. On 12 September 2003, the Applicant returned to Australia.[12][12] HB 148. The Applicant first came to the attention of police on 15 October 2003, when he was found in possession of Cannabis.[13][13] HB 350. On 5 March 2004, the Applicant travelled to Fiji.[14][14] HB 148. On 21 March 2004, the Applicant returned to Australia. [15][15] HB 148. On 26 May 2005, the Applicant travelled to Fiji.[16][16] HB 148. On 19 June 2005, the Applicant returned to Australia.[17][17] HB 148. On 30 June 2006, the Applicant travelled to Fiji.[18] He married his wife, Ms SD in Fiji.[18] HB 147. On 31 July 2006, the Applicant returned to Australia.[19][19] HB 147. In April 2007, the Applicant’s wife, Ms SD came to Australia from Fiji. On 12 August 2007, the Applicant’s daughter, Child A was born. She has just turned 18. She is an Australian citizen.[20][20] HB 107. On 29 April 2008, the Applicant assaulted his wife.[21] The police fact sheet states;[21] HB 407, 469.“The Accused Rajnesh DASS and the victim [Ms. SD] have been in a domestic relationship for nine years. Two of those nine years they have been married. As a result of this marriage the couple have a nine month old baby named [Child A].During the past nine months the accused and victim have had relationship issues which resulted in several occasions of the victim being mentally and physically assaulted. These incidents were never reported to Police. The couple currently live at [REDACTED], New South Wales which is a two storey brick unit.About 5am on Tuesday the 29th of April, 2008 the victim awoke from her sleep. At this time the victim walked down stairs and prepared a cooked lunch for the accused to take to work. As a result the victim opened a nearby window to allow fresh air into the unit. At this time the accused awoke and approached the victim.At this time the accused stated: "This not good, this will upset the baby, it's to cold. Slut you bitch, you mother fucker, fuck off, you go fuck your father". As a result of this the accused entered the kitchen area and began to throw the food items the victim had prepared around the kitchen area causing food to fall to the ground and surrounding sink area.Due to this incident the accused and victim became involved in an verbal argument over the way the accused had thrown the items around the kitchen. As a result the victim attended upstairs to their nine month old baby which was crying due to the noise both the victim and accused were making. Due to this the accused approached the victim outside their upstairs bedroom. During this time the accused stated: "You bitch, fuck you".At this point the accused raised his right hand and with an open hand slapped the victim to her left cheek three consecutive times. During this time the accused spat towards the victim narrowly missing the victims facial area. As a result the victim suffered immediate pain to her left cheek. This then caused the victim to cry as a result.The accused then walked down the stairs and on the way to the exit punched a nearby laundry door causing damage to the wooden door.The accused then exited the unit and attended to his parents address nearby at unit 2 of the same unit complex. During this time the accused soon after left for work. As a result of the incident the victim had a heated conversation with her mother in-law soon after the altercation.As a result the victim contacted Police at about 1 lam on the same day. A short time later Police attended the unit and spoke with the victim. During this time the victim provided Police with a written statement in regards to the incident.During this time the victim explained to Police that the accused was currently at work and only due back at about 7pm. During this time the victim explained to Police that she had recently received her permanent visa from immigration and that she was sick of her husband getting away with this stuff.Police did not sight any injuries on the victim in relation to the assault. About 7.35pm on the 29th of April, 2008 Police attended unit [REDACTED]. During this time Police arrested the accused. At this time the accused was cautioned and all the safe guards in relation to the Law Enforcement Powers and Responsibilities Act2002 were adhered to. At this time the accused was frisk searched and handcuffs placed to the rear of accused. At this time the accused was conveyed back to [REDACTED] Police Station in an marked sedan.While in Police custody the accused was introduced to the Custody Sergeant. During this time Part 9 of LEPRA was explained to the accused. The accused was afforded the opportunity to participate in an Electronic Recorded Interview between Suspects and Police to which the accused disagreed. However whilst in police custody the accused made certain admissions to police in relation to the offence. He stated,' Yes I may have slightly slapped her on the cheek a couple of times but not hard I did not assault her badly in any way." Whilst the accused stated this he indicated to police with a slight slapping motion on his right cheek with his right hand.The accused is now charged with the matter now before the court.”[22][22] HB 399, 410-412.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In relation to his wife he says:“Describe any current impact on family members, and/or any likely impact on them in the event of a negative s501 decision outcome (i.e. a non-revocation or visa cancellation/refusal decision). My wife is currently paying rent, bills, daughters school fees on her own. She is expecting me to come home, find job and help her financially. If I am sent back, she will be depressed, very hard to pay rent, bills on her own, she just had a surgery and only been working few days a week.”[192][192] HB 93. The Applicant’s wife provided a further undated statement. Whatever troubles there have been in the history of these relationships, I accept that they are close. Child B and other minor children are discussed in more detail below. I refer to that discussion in this context also. I accept that if the Applicant were to return to Fiji this may have serious consequences for all of his family, but particularly for his wife and daughters who would be deprived of his ongoing financial and practical support. The extent of this detriment would be directly linked to the prospects of his successful rehabilitation. To a lesser extent a similar observation could be made in relation to his mother, his siblings, their families and so on. The Applicant has 2 brothers, his sister in-in-law and his mother living in Australia. One of his brothers and his mother are Australian citizens.[193] Again, I accept that these relationships are close.[193] HB 93, 115, 116. The Applicant has also disclosed 2 grandparents, 10 cousins, 7 uncles, one aunt and 8 nieces/nephews in Australia. It was evident during the hearing, that the Applicant was applying different kinship definitions to those generally understood in family relationships. For instance, the grandparents referred to were not his biological grandparents. The fact remains however, that the Applicant certainty has extensive family connections in Australia, beyond his immediate family. The Applicant has produced letters of support.[194][194] HB 112. I accept that in the many years that the Applicant has been in Australia, he has become a part of our broader community. In summary, the Applicant has extensive and deep connections in Australia. He has however, been a long-term burden on our community as detailed above. He has been a particular burden on his wife and close family. This detracts from what otherwise would have been a very heavy consideration in his favour.Conclusion: Primary Consideration 3 This consideration weighs moderately in favour of revocation of the cancellation of the Applicant’s visaPrimary Consideration 4: The best interests of minor children in Australia Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

Ratio Decidendi

Legal Principle Established

On 13 November 2018, NSW Corrections records state:“Rajnesh has returned to custody for a similar offence to his last, enter building w/i commit indictable offence- T1, B&E dwelling-house ect with intent (steal)-T1, goods in personal custody suspected being stolen (not m/v) and destroy or damage property. He in serving 1yr6m with a NPP of 8m, his EPRD 22/01/2019. Rajnesh returned to using ICE when released and was using 1/2oz daily, he states that he doesn't use any other substance but finds it difficult to stop using after the initial usage. He states he wants to get away from the drugs as his wife is starting is not supporting his continued use. i feels that he might lose her if he continues.Rajnesh completed yr 12 at school and has no difficulty reading, writing or doing mathematics. He has maintained employment all in life until 2015 where no night he was at a party, everyone was smoking ICE, he cracked under peer pressure and tried it and from there his life as he knew it changed, he lost his job, started selling his possessions and then started committing crime all to support his increasing desire to have more ICE.Rajnesh has a wife and 2 daughters, his mum and dad and 2 bothers are Australian citizens and life here as well, His whole family are hard working people and have a pro-social influence within their family. None of them have criminal records or are involved in drugs. Rajnesh states that they are all supportive at the moment but fears if he continues to offend he might lose them or even worse become an interest to immigration due to him being born in Fiji.Rajnesh is willing to work whilst in custody and wants to break his dependency on drugs, ICE in particular. He is willing to address his criminogenic needs through services and programs as identified.”[97][97] HB 921. This report makes it clear that the Applicant was well aware of the possible consequences of reoffending. On 4 January 2019, NSW Corrections records state:“FV to proposed accommodation 106 Centenary Road, South Wentworthville accompanied by CCO. CCO met with offender's former partner [redacted].Co-resident details provided as:[REDACTED] – [DOB redacted] - wife[REDACTED] - [DOB redacted] - Daughter[REDACTED] - [DOB redacted] - DaughterAccommodation was neatly kempt.[Applicant Wife] was very forthcoming regarding the offender's historical behaviour.Offender's partner presents as supportive of offender living with the accommodation. Claimed that her children were excited for the offender to return home. Claimed that offender has alleged he has been 'clean' during his custodial sentence. Indicated that she is well aware when he uses methamphetamines and he physically looks better in goal. Visits him frequently via train.[Applicant Wife] advised that she was willing to provide the offender one last chance to change. Claimed that he has portrayed some motivation during their interactions. Advised that she has contacts to obtain employment for offender.[Applicant Wife] is very insightful into offender's behaviour, knows when he is clean and when he is taking drugs.[Applicant Wife] also revealed that she has adopted a 'zero-tolerance' approach towards the offender and any further wrong doing will warrant his eviction.Significant concerns did became apparent during the interaction with the CCO in relation to drug use, violence erratic behaviour.Information submitted to corporate records.[Applicant Wife] was referred to Cumberland Women's Health Centre.”[98][98] HB 925.